Perry Backus, Feb 7, 2018 Updated Apr 11, 2019
Supreme Court upholds constitutionality of CSKT Water Compact
The Montana Supreme Court Wednesday ruled the long-debated Confederated Salish and Kootenai Tribes water compact was constitutionally sound.
POLSON — A Lake County district judge ruled Friday that the board that represents irrigators of about 138,000 acres in northwest Montana has not been a valid governmental entity since 2013 and ordered it to immediately dissolve.
In his ruling, Judge James Manley said the Flathead Joint Board of Control (FJBC) failed to hold an election when it attempted to reestablish itself on May 27, 2014, and therefore had no legal authority.
The organization spent nearly $1 million in 2016 and 2017 to litigate its opposition to the Confederated Salish and Kootenai Tribes Montana Water Compact from funds assessed from local irrigators, court records state.
Manley’s ruling follows a lawsuit filed in 2016 by a nonprofit organization called Mission Valley Irrigators United that challenged the FJBC, saying it did not follow state law when it was reconstituted.
Originally created in 1981, the FJBC represented private, fee-paying irrigators in the Flathead, Mission and Jocko districts that use water distributed by the Flathead Irrigation Project. The organization was established to oversee general administration, maintenance and repairs.
It disbanded in December 2013 following a divisive debate among its members over the Confederated Salish and Kootenai Tribes’ Flathead Water Compact and other issues.
Commissioners from the three districts voted to reestablish the organization in May 2014 without a general vote of the irrigators from the districts.
Since 1959, state law has required irrigation districts seeking to operate under a board of control to hold an election of the landowners within the districts before entering into a contract to do so. Manley’s ruling said landowners within the districts must also petition to form a joint board before that vote is undertaken.
Manley ruled the FJBC did neither.
“These requirements are fundamental to the democratic process in order for the opinions of the landowners within the district to be represented when a joint board no longer exists, as was the case here,” Manley said in his ruling.
FJBC officials maintained that another state law allowed the board to be reestablished through either a contract or by election.
Manley’s ruling also expressed concerns over the contract that FJBC officials used to reconstitute the board.
The new contract and bylaws the FJBC adopted limited the individual district’s ability to reject expenditures approved by the organization, Manley wrote.
Irrigators in the three districts “have paid many thousands of dollars per year in litigation and lobbying fees taxed and spent by the (FJBC) on various unsuccessful litigation campaigns since May 2014,” Manley wrote. “Many of the issues litigated by (FJBC) go far beyond their statutorily defined scope of operation and maintenance of irrigation and/or drainage works and the delivery of water.”
FJBC spent $596,691 in 2016 and an estimated budget of $400,848 in 2017 on legal fees, according to the ruling.
In its lawsuit, the Mission Valley Irrigators also pointed out that FJBC is under investigation for the alleged misappropriation of $221,000 by the Federal Bureau of Investigation. No charges have been filed in that case.
The Bureau of Indian Affairs has served as the operator for the Flathead Irrigation Project since 2014.
CSKT spokesman Rob McDonald said Wednesday the tribes had no comment on Manley’s decision.
Mission Irrigation Commission Chair Ray Swenson said the three irrigation districts are providing information to landowners about the ruling.
The irrigation districts formed in 1926 and ran as separate entities until the Flathead Joint Board of Control was originally formed in 1981, Swenson said.
“This isn’t the end of the world,” he said. “The districts are pretty solid. They will be around forever. … Everyone is just in a holding pattern for a little bit now.”
The three districts will hold a combined meeting on Tuesday, Feb. 13, to pay bills and discuss options.
When the FJBC was created in the 1980s, Swenson said it was on the premise the federal government was on the cusp of turning over the operation of the irrigation project to irrigators. In 1908, according to Swenson, the federal government said when the cost of the project was recouped, the U.S. Secretary of the Interior would transfer operation to irrigators.
“That’s what everybody has been striving for for years,” Swenson said. “Right now, we’re going to have to play it by ear. We are all elected to represent the irrigators. We need to get a sense of what everyone wants to do.”
Paul Guenzler is the chair of the Flathead Irrigation District.
He hopes the districts will work together toward the common goal of regaining local control of the operation of the irrigation district. Guenzler also wants to see more of the irrigators’ funding be used for operations and maintenance rather than lawsuits and lawyers.
In the short run, Guenzler said irrigators won’t see much change from what’s occurred over the past three or four years that the project has been operated by the Bureau of Indian Affairs.
Not everyone will be happy about that.
“There have been some things that have happened that aren’t to be desired,” Guenzler said. “It’s kind of like having employees versus doing the job yourself. If you do the work yourself, you get it done the way you like it done. If we could get it back, we, the irrigators, would be doing the job ourselves and be more involved.”
In 2010, a transfer agreement was reached between federal, tribal and state governments that created a Cooperative Management Entity that included equal representation from the Flathead Joint Board of Control and CSKT. It was the first of its kind in the nation.
“I think everyone agrees that the irrigation district ran really well under that,” Guenzler said.
That ended about the same time the FJBC was reestablished.
“The districts got into a political snafu between themselves and couldn’t agree and so the BIA took operations back,” he said.
There have been quite a few irrigators unhappy with the amount of money the FJBC has spent paying for lawyers and lawsuits, rather than irrigation costs. The Flathead District alone was paying $12,000 a month in legal fees, Guenzler said.
“The joint board for the last three years has paid $500 a day in attorney costs, 365 days a year,” he said. “They were paying $15,000 a month in retainers. You need representation … but we don’t need to go looking for things to do.
“We are in a tight time now in agriculture,” Guenzler said. “I don’t care what you raise, agriculture is hurting. I don’t care if it’s hay, grain, potatoes or cattle, agriculture is hurting all the way across the country right now. Everyone needs for us to be as tight as we can with their money.”
Guenzler said he’s encouraged about the future.
“We have three chairmen working really well together right now,” Guenzler said. “Right after this happened, we met and began moving forward as three districts. I have high hopes that’s not going to change.”
The Flathead Irrigation District is the largest irrigation district in the state. The irrigation system includes 17 dams and reservoirs, about 1,300 miles of canals and laterals and about 10,000 structures.